Defending doctors from manslaughter investigations

The manslaughter conviction of Dr Hadiza Bawa-Garba was a shocking reminder that doctors face more than a complaint or claim if they make a clinical error. They can also find themselves facing a police investigation which might lead to a criminal conviction and even prison.

Ian Barker, an MDU senior solicitor, has first-hand knowledge of the trauma experienced by doctors who are facing a manslaughter allegation. As the MDU’s most experienced criminal solicitor he has been involved in more than 100 cases in his career.

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Ian is part of the MDU’s team of criminal solicitors which includes Sara Mason, Nicholas Tennant and Emma Lort. Together they have more than 65 years of experience in complex medical cases and can call on the resources of the MDU to mount the most effective defence.

'I still remember the first manslaughter case I had that went to trial,' says Ian. 'The situation was similar to that which many doctors find themselves in these days - treating patients under pressure and in circumstances that are less than ideal.'

Preparing for a police interview

Even if the doctor does not end up in the dock, a police investigation can be a harrowing experience and underlines the importance of having effective advice, representation and support from the outset.

The MDU’s criminal solicitors prepare the doctor for the ordeal of a police interview under caution so they know what to expect. Sara Mason explains: 'Going to police station is very intimidating so expert legal representation is essential.'

Ian continues: 'Interview rooms tend to be within custody area with cells nearby. Sometimes the police will conduct the interview away from custody suite but this is not always possible. It takes plenty of experience to be good at police interviews and you can badly damage your case if you get it wrong.'

Following a police interview, it can take months before a doctor knows whether or not they will be charged. Ian had one case where the doctor was left in limbo for three years before a decision was made. The MDU’s role includes supporting the member during this difficult period while building a robust defence case if the CPS decides to prosecute.

'In the run-up to a trial, we will devote a significant amount of time to preparing the legal case - instructing experts and barristers - but pastoral care is equally important,' Ian explains. 'This experience is very draining for doctors and they need someone to guide them through it. I encourage them not to try and tough it out but to talk to their family, friends or a GP. My mobile number is available so they can contact me day or night.'

Over-investigation

The MDU has a strong track record in achieving a successful outcome for members in criminal cases: only about one-in-four manslaughter prosecutions involving the MDU’s in-house team results in a conviction.

But even if MDU doctors benefit from specialist and tenacious representation, it is troubling that the number of manslaughter investigations and prosecutions against doctors is having such a demoralising effect on the profession.

As of 2015, it was understood that 95% of gross negligence manslaughter (GNM) cases relating to healthcare professionals that are investigated by the police do not result in prosecution. Of those that do, the conviction rate is only around a third of cases. By contrast, the CPS national success rate in GNM cases overall runs at just under 80%.

'The figures suggest a significant level of over-investigation of medical manslaughter cases,' says Nicholas Tennant, another member of the team. 'This benefits no-one. It is distressing for both doctors and families of the deceased and of course it is also a drain on police resources.'

Government review

He recently gave evidence to the Williams’ review and among the measures he would most like to see introduced is greater support for coroners who are currently responsible for passing most cases to the police for investigation. Clearer guidance about law and a more robust referral process, involving the Chief Coroner would help to achieve greater consistency and clarity.

'The public interest lies in identifying and prosecuting only those cases that are the medical equivalent of deliberately driving down the motorway on the wrong side,' Ian explains.

'However, in most cases, criminal investigations and prosecutions do not contribute much to the cause of patient safety because they are more about fixing the blame on an individual rather than fixing the problem. The best way to achieve a safer environment for patients lies in promoting a culture of fairness, transparency and learning from mistakes.'